Respondent's Factum

SCC No. 34286 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)

BETWEEN:

SAM TUAN VU APPELLANT (RESPONDENT)

AND:

HER MAJESTY THE QUEEN

RESPONDENT (APPELLANT)

RESPONDENT’S FACTUM

Solicitor for the Appellant: Ottawa Agents for the Appellant:

HOWARD RUBIN, Q.C. BRIAN A. CRANE, Q.C. CHANDRA CORRIVEAU Gowling Lafleur Henderson LLP Barristers & Solicitors Barristers & Solicitors 405 East 4th Street 2600– 160 Elgin Street North Vancouver, B.C. V7L 1J4 Ottawa, ON K1P 1C3 Tel: (604) 984-2030 Tel: (613) 233-1781 Fax: (604) 988-0025 Fax: (613) 563-9869 E-mail: [email protected] E-mail: [email protected]

Solicitor for the Respondent: Ottawa Agents for the Respondent:

JENNIFER DUNCAN ROBERT E. HOUSTON, Q.C. Ministry of Attorney General Burke-Robertson LLP Criminal Appeals Barristers & Solicitors 6th Floor, 865 Hornby Street 70 Gloucester Street Vancouver, B.C. V6Z 2G3 Ottawa, ON K2P 0A2 Tel: (604) 660-1126 Tel: (613) 236-9665 Fax: (604) 660-1133 Fax: (613) 235-4430 E-mail: [email protected] E-mail: [email protected]

TABLE OF CONTENTS

PAGE

PART I - STATEMENT OF FACTS...... 1 A. Overview of the evidence ...... 1 B. Procedural history ...... 3 C. Reasons for Judgment at Trial ...... 5 i) The case against Nguyen ...... 6 ii) The case against Hernandez ...... 7 iii) The case against the Appellant ...... 8 D. The Court of Appeal for British Columbia ...... 11 i) The majority judgment ...... 11 ii) Minority reasons, concurring in the result ...... 13

PART II - RESPONDENT’S POSITION ON ISSUES ON APPEAL ...... 15

PART III - ARGUMENT ...... 16 A. Overview ...... 16 B. The authorities ...... 17 C. A brief history of kidnapping ...... 22 D. Application to this case ...... 29 i) Kidnapping as a continuing offence ...... 29 ii) Kidnapping as a continuing transaction ...... 32 E. Conclusion ...... 34

PART IV - COSTS...... 35

PART V - ORDER SOUGHT ...... 36

PART VI - TABLE OF AUTHORITIES ...... 37

PART VII – STATUTORY PROVISIONS ...... 39

PART I

STATEMENT OF FACTS

1. This appeal engages the issues of when a kidnapping begins and ends, legally

and factually, and what criminal liability can be ascribed to one who does not effect the taking of the victim but who assists in the ensuing confinement, knowing the victim has been kidnapped. These issues must be considered against the factual backdrop of this case where the victim was taken, then kept in and moved between three different houses of confinement over a period of nine days by several individuals, one of whom

was the Appellant. The Appellant was connected to all three houses of confinement.

A. Overview of the evidence

2. Graham McMynn was abducted on the morning of April 4, 2006 as he was

driving his girlfriend, Jacklin Tran, from the McMynn home on the west side of

Vancouver to a class at the University of British Columbia. A silver Honda Civic blocked

their progress and a second vehicle pulled in behind. 1 Two men got out of the Honda,

carrying what appeared to be handguns. There were one or two others in the Honda

and at least one person in the second vehicle. The two armed men ordered Mr.

McMynn to get into the Honda. Ms. Tran was left behind. The abductors took Ms.

Tran’s cellphone but she had the presence of mind to memorize the licence plate

number of the silver Honda, a factor which was of immense significance to the police

investigation and the safe recovery of Mr. McMynn eight days later.

1. The day before, April 3, the couple had a strange encounter with a silver compact vehicle in the vicinity of the McMynn home but thought nothing of it until the events of the following day.

3. After a short drive in the silver Honda, Mr. McMynn’s abductors “escorted” him, at

gunpoint 2, to a van. He was told the lie down in the back of the van and made to

surrender his wallet, keys and glasses. The abductors wrapped duct tape around Mr.

McMynn’s head and covered his eyes. After a drive of approximately ten minutes

duration, he was taken out of the van in a garage, where he was handcuffed and

threatened with being hurt or shot if he did anything. His abductors took him into House

#1 and confined him in a closet. They told him to take off his clothing and threatened him with rape.

4. For the duration of his captivity Mr. McMynn either wore a blindfold or covered

his eyes so he could not see his captors. While he was unable to identify them by sight,

the trial judge accepted his evidence of three distinct male voices involved in his

confinement: “high-pitched voice” (Jose Hernandez); “the leader” (Anh The Nguyen);

and “Chinese-accented man” (the Appellant).

5. Mr. McMynn spent approximately three days confined in the closet at House #1, stripped to his underwear, hands cuffed behind his back, legs bound with zap straps.

6. On or about April 7, Mr. McMynn was moved to House #2 and confined in a bedroom, blindfolded for the most part and with his legs bound. On or about April 10 or

11, Mr. McMynn was moved to House #3 and again confined in a bedroom. On April

12, the ninth day of his ordeal, Mr. McMynn was rescued from House #3 by police during simultaneous raids on all three houses in which he had been held.

2. The trial judge was not convinced beyond a reasonable doubt the guns used were real, though he noted they appeared real to Mr. McMynn and Ms. Tran [Reasons for Judgment, para. 339]. 3

7. The Appellant was arrested during the raid on House #3. He was linked by his

fingerprints, footprints, DNA or personal belongings to all three houses of confinement

and to a Toyota Previa van which contained objects bearing the DNA of Mr. McMynn,

Hernandez and Nguyen.

8. No ransom demand was made during Mr. McMynn’s captivity, nor was anyone

given information about his whereabouts or the reason for the kidnapping.

B. Procedural history

9. The Appellant was charged with kidnapping under s. 279(1) of the Criminal

Code (Count 1) and unlawful confinement under s. 279(2) (Count 2), between April 3

and 12, 2006 [Indictment, Appellant’s Record, pp. 180-181]. He was tried with four

adult co-accused - Jose Hernandez, Anh The Nguyen, a.k.a. Jackson Nguyen, Joshua

Ponicappo and Van Van Vu (“Van Vu”) - by Mr. Justice Silverman, sitting without a jury,

in the Supreme Court of British Columbia. 3

10. The trial judge’s lengthy Reasons for Judgment were released on October 17,

2008. The Appellant was convicted of unlawful confinement but acquitted of

kidnapping. Hernandez and Nguyen were convicted on both counts. Ponicappo and

Van Vu were acquitted outright.

11. The Crown appealed the Appellant’s acquittal to the Court of Appeal for British

Columbia on the footing that kidnapping is a continuing offence which includes both the

initial taking and the ensuing confinement. The Appellant, by virtue of his guilt for unlawful confinement knowing the victim had been kidnapped, was a party to the kidnapping. Alternatively, the Crown argued the Appellant aided or abetted the kidnapping by planning and participating in moving the victim from one place of confinement to another. The Appellant appealed his conviction for unlawful confinement, arguing unreasonable verdict.

12. On March 11, 2011 the Crown’s appeal was allowed and a conviction for kidnapping entered against the Appellant. The majority (Finch CJBC and Saunders JA) found kidnapping is a continuing offence. The Appellant was guilty of kidnapping as a party by virtue of his confinement of the victim, knowing the victim had been kidnapped.

Prowse JA in separate reasons, concurring in the result, found the kidnapping in this case was charged as a single transaction which encompassed the initial taking of Mr.

McMynn and the subsequent moving of him from house to house. The Appellant was a party to the continuing transaction of kidnapping by aiding and abetting the movement of the victim between houses after the initial taking and during the period covered by the

Indictment.

13. The Appellant’s appeal against conviction for unlawful confinement was unanimously dismissed.

14. Silverman J. sentenced the Appellant on the kidnapping count on March 29,

2011 to imprisonment for ten and one half years, less credit for time in pre-trial custody and time he had already served for his sentence of eight years on the unlawful confinement. He was granted bail pending this appeal on August 22, 2011 and must 5

turn himself into custody to the Law Courts in Vancouver by 1:00 p.m. on the day before

the hearing of this appeal, or June 29, 2012, whichever first occurs.

15. The Appellant appeals his conviction for kidnapping to this Court as of right pursuant to s. 691(2)(b) of the Criminal Code. It is the Respondent’s position that the

majority judgment of the Court of Appeal for British Columbia correctly found kidnapping

to be a continuing offence which includes the subsequent confinement of the victim. In

the result, the Appellant was properly convicted by the Court of Appeal as a party to the

kidnapping. Alternatively, Prowse JA was correct in finding that the kidnapping in this case was charged as a continuing transaction and the Appellant was a party to it by his confinement of the victim, which aided and abetted those who moved Mr. McMynn from house to house.

C. Reasons for Judgment at Trial

16. The trial judge began his Reasons by noting kidnapping and confinement are

similar. The distinction between the two is the aspect of movement of the victim. With

kidnapping, the victim is moved during his confinement, whereas with unlawful

confinement, he is kept prisoner in one location [A.R., p. 4, para. 3].

17. The trial judge provided an overview of the abduction [A.R., pp. 9-13, paras. 21-

41] and moved on to summarize the investigation, which began moments after Mr.

McMynn was taken. Information provided to the Vancouver Police Department by Ms.

Tran about the licence plate of the silver Honda led them to a car rental agency and

ultimately to the identity of Anh The Nguyen as the individual who had rented that

vehicle. Police began surreptitious surveillance of Nguyen and intercepted calls to and 6

from his cell phone. Nguyen was observed meeting with other persons who in turn

became the subjects of surveillance. Various vehicles and the three houses where Mr.

McMynn was kept were identified during surveillance [A.R., pp. 13-14, paras. 42-52].

18. Mr. McMynn’s DNA was located at all three houses where he was confined and on the handle of a pair of scissors in the glove box of a Toyota Previa van [A.R., p. 35, para. 117]. The van was registered to Mr. Z.,V1V1V1 [fn. 2, supra; A.R., p. 33, para. 113]. Mr. McMynn’s fingerprints or foot prints were found in all three houses and his wallet, glasses and jacket were located in House #3 [A.R., p. 36, para.

120].

19. The trial judge reviewed the evidence relating to each accused separately.

(i) The case against Nguyen

20. The trial judge found Nguyen was connected to House #1 through DNA and

fingerprints and was present when it was rented. He was satisfied by the evidence of

Mr. McMynn about Nguyen’s voice as “the leader” who spoke with him while he was

confined in the closet in House #1. Nguyen mentioned a police cruiser to Mr. McMynn, something the latter was aware of as he was being transported to House #1 after he was first abducted (the necessary implication of this piece of evidence is that Nguyen knew of the police cruiser because he was either in the van with Mr. McMynn or in the second vehicle involved in the initial abduction). Nguyen was connected to House #3 by his DNA and fingerprints. Police also found the keys to House #1 with Nguyen’s

DNA on them and the garage door opener to House #1 in House #3. Nguyen had

shown particular interest in the garage of House #1 when he viewed it prior to its rental 7

by Tunnie Vu. Nguyen was connected to the Toyota Previa van by DNA and a

fingerprint. In Nguyen’s residence on East 23rd police found two of three phones

dubbed the “three Amigo” phones which were proven to have been in contact with each

other immediately prior to the kidnapping. Nguyen’s DNA was on one of the two

phones. The trial judge was also satisfied that Nguyen was the person who went to

Best Price car rental on the evening of April 4th to change the name on the rental

contract for the silver Honda [A.R., pp. 115-116, para. 353; R.R., p. 68(30-47)].

21. While the trial judge was not satisfied Nguyen was one of the two men who

approached Mr. McMynn at the scene of the original kidnapping, he was satisfied

Nguyen was involved in the planning and organization of the original kidnapping as well

as the movement of McMynn from house to house. Even if he was not actively involved

in the movement, he was involved in the planning and participation. The trial judge

convicted Nguyen of both kidnapping and unlawful confinement [A.R., p. 117, para.

357].

(ii) The case against Hernandez

22. The trial judge did not find Hernandez was an active participant in the original kidnapping of April 4th, but found he was present at all three houses of confinement,

with full knowledge that Mr. McMynn was being confined against his will. The trial judge

was also satisfied Hernandez was present at House #2 when discussing the move to

House #3 and present in the vehicle while Mr. McMynn was moved from House #2 to

House #3, based on Mr. McMynn’s evidence. Accordingly, the trial judge convicted 8

Hernandez of kidnapping and unlawful confinement [A.R., p. 65, para. 196(4), A.R., pp.

114-115, para. 352; Respondent’s Record, p. 60(22-47), 61(61(1-27)].

(iii) The case against the Appellant

23. The trial judge’s review of the evidence against the Appellant commences at

para. 195 of the Reasons [A.R., p. 64]. Of significance:

• at House #2, Mr. McMynn spoke with high-pitched voice (Hernandez) and Chinese-accented man (the Appellant). Both were aware of the involvement of a second group which was supposed to get the money from McMynn’s family. They were prepared to “shoot up” the other group and keep McMynn captive for up to six months before demanding a ransom [A.R., p. 65, para. 196(1); R.R., p. 42(5-47), 43(1-20)]; • both Hernandez and the Appellant indicated to McMynn that if the ransom was not paid they would kill him [A.R., p. 65, para. 196(2)]; • at House #2 McMynn heard the Appellant, Hernandez and Nguyen discussing a move to House #3 [A.R., p. 65, para. 196(4); R.R., p. 60(19- 47), 61(1-26)]; • after the move to House #3, McMynn again recognized all three voices there [A.R., p. 65, para. 196(5)].

24. Witness X gave evidence relevant to the Crown’s case against the Appellant and

Hernandez [A.R., p. 23, para. 80]. The trial judge noted:

• Witness X knew Hernandez and the Appellant from previous dealings [A.R., p. 41, para. 130(1)]; • Witness X arrived in town from Calgary on April 7 and spent the night at Hernandez’s house. On April 8 Witness X and Hernandez met with the Appellant. Witness X drove them to House #3 and then to House #2, where he spent the night with them [para. 130(3)]; 9

• Nguyen, who Witness X had not met before, opened the door to them at House #2. Witness X later drove the Appellant to Rona (a hardware store) to buy duct tape, zap straps and a tarp. Nguyen accompanied them [para. 130(4); see also A.R., p. 66, para. 199].

25. Witness X’s fingerprints, along with those of the Appellant, were found on the

tarp packaging seized from House #3. Witness X’s fingerprints were also on a roll of

duct tape found in that house [A.R., p. 66, para. 200].

26. There was evidence connecting the Appellant to all three houses of confinement.

His DNA was found on a sock with a square of toilet paper attached to it in the

bathroom of House #2. In House #3 his DNA was detected on three cigarette butts and

a marijuana cigarette from the bedroom where Mr. McMynn was held and on a

toothbrush from the bathroom in that house. The Appellant’s DNA was on a cigarette butt in the ashtray of the Toyota Previa van [A.R., p.p. 70-71, para. 216]. T

27. The Appellant’s fingerprints or footprints were found in various locations in all three houses of confinement [A.R., pp. 71-72, para. 217]. In House #3, his footprints and fingerprints were on several green garbage bags in the hallway, which were near or actually contained a number of incriminating items:

• handcuffs; • thumbcuffs; • two rolls of duct tape; • six keys; • a garage door opener that opened the garage at House #1 • a green blindfold; and • a tarp, still in its packaging, bearing both the Appellant’s fingerprints and Witness X’s fingerprints.

28. In House #3 police also found a Province newspaper dated April 10, 2006, opened to the story of Mr. McMynn’s kidnapping, a fax concerning rental vehicles from a different agency than the one the silver Honda was obtained from, ammunition for a

handgun and the Appellant’s citizenship papers [A.R., pp. 38-39, para. 123; A.R., p. 73, para. 221].

29. After reviewing the evidence and submissions of counsel, the trial judge was satisfied of the following:

• the Appellant was the individual Mr. McMynn identified as “Chinese accent”; • he accepted the evidence of Witness X that he drove two people (Hernandez and the Appellant) on April 8 to House #3 and then House #2, where they entered; • Witness X drove the Appellant to Rona on April 8 where a tarp and duct tape were purchased; • the Appellant was connected to House #1 by his footprints on the bathroom floor; • the Appellant was connected to House #2, in addition to the evidence of Witness X, by virtue of his DNA on a sock with a square of toilet paper attached and fingerprints on various items; • the Appellant was connected to House #3 by his DNA on a number of items and by his citizenship papers; • the Appellant was connected to the Toyota Previa van; • there was a significant amount of evidence of the Appellant’s association with Nguyen, including driving him to various locations and having a number of telephone conversations with him [A.R., p.p. 120-121, para. 368(1-6)].

30. In making his findings against the Appellant, the trial judge referred to the “drug dealing” defence, which the defence maintained provided an alternate explanation consistent with innocence for any suspicious items of evidence [A.R., pp. 79-80, paras.

245-255]: 11

[369] I acknowledge and have considered the arguments of the defence. The comments made when discussing the verdicts concerning Hernandez, with respect to the effect of the combination of individual items of suspicious evidence, are applicable here. The accidental occurrence of such a combination of events and items would require a confluence of coincidences too fantastic to be reasonably possible. There is no rational inference that can be drawn from the evidence other than that [the Appellant] was involved, with full knowledge, in the wrongdoing against McMynn. I am satisfied of that beyond a reasonable doubt...... [372] I have given particular attention to the arguments made with respect to what I have referred to as the drug business defence. In that regard, the comments I made about this defence when discussing the verdicts concerning Hernandez are equally applicable here. On a consideration of the totality of the evidence, I am satisfied beyond a reasonable doubt that, whatever involvement he may have had in the drug business, [the Appellant] was a participant, with full knowledge, in the wrongdoing against McMynn. [A.R., pp. 121, 122; Respondent’s emphasis]

31. While acknowledging there was evidence connecting the Appellant to all three houses of confinement, the trial judge was not satisfied he had anything more than knowledge about the movement of the victim, so he acquitted the Appellant of kidnapping. 4 The Appellant was convicted of unlawful confinement because the judge was satisfied he “had knowledge, and was a participant in the confinement of McMynn.”

[A.R., pp. 122-123, para. 375]

D. The Court of Appeal for British Columbia i) The majority judgment

32. After an exhaustive review of Commonwealth authorities and legislation [A.R., pp. 162-170, paras. 36-57], Finch CJBC concluded that kidnapping is a continuing

4. The only apparent basis for Hernandez’s conviction for kidnapping, in contrast to the Appellant’s acquittal for that offence, is the trial judge’s finding that Hernandez was in the vehicle when the victim was transferred from House #2 to House #3. There was evidence that Nguyen, Hernandez and the Appellant discussed the move from House #2 to House #3 [para. 196(4)], which the trial judge relied on in relation to Hernandez [para. 352(1)] but did not expressly mention when making his findings against the Appellant. 12

offence encompassing both the initial taking and the ensuing confinement of the victim.

Given the trial judge’s finding the Appellant did not actively participate in the initial taking

or subsequent movement of Mr. McMynn from house to house, his responsibility for

kidnapping would have to rest on a finding that he was a party to the offence of

kidnapping under s. 21 of the Criminal Code.

33. Finch CJBC observed that the actus reus of aiding or abetting under s. 21 involves an act or acts which assist or encourage the perpetrator to commit the offence

[A.R., p. 170, para. 58]. The mens rea for a party requires both intent and knowledge:

Intent may be inferred from conduct, and a person who is sane and sober is deemed to intend the natural and probable consequences of his acts. That would appear to be the basis on which [the Appellant] was found guilty on the second count, forcible confinement [A.R., p. 171, para. 60].

To be a party to the offence of kidnapping, an accused must “have knowledge that the

principal offender intended to commit kidnapping or, in the context of a continuing

offence where the taking has already occurred, the accused must have knowledge that

a kidnapping has occurred, and that the victim’s confinement is the result of that act

[A.R., p. 171, para. 61]. Wilful blindness can substitute for actual knowledge [A.R., p.

172, para. 64].

34. Finch CJBC was satisfied the trial judge’s finding that the Appellant was guilty of

unlawful confinement met the actus reus requirement as a party to the continuing

offence of kidnapping [A.R., p. 172, para. 65]. As to the mens rea requirement, the trial

judge found the only rational inference from the evidence was that the Appellant was

involved, “with full knowledge”, in the wrongdoing against the victim [A.R., p. 172, para.

66]. While the trial judge acknowledged there was evidence connecting the Appellant to 13

all three houses of confinement, he was not satisfied the Appellant had anything more

than knowledge about the movement of the victim [A.R., p. 172, para. 66]. Finch CJBC

said:

[67] It is clear from these statements by the trial judge that, while “full knowledge” might imply more, he was at least satisfied that [the Appellant] was aware that McMynn was held against his will and moved from house to house. This conclusion flows from his finding that the accused was present in the three different houses where McMynn was held. Although the judge was not satisfied the accused actively participated in the movement of McMynn, his participation in the movement is not a necessary element to convict him as a party to kidnapping. Knowledge that the victim has been taken is sufficient, and I interpret the judge’s reasons to mean that [the Appellant] Vu would have had to be wilfully blind not to know that McMynn had been taken and was being held against his will in all three houses. [A.R., p. 173].

35. In the result, Finch CJBC was satisfied the trial judge found all the facts

necessary to convict the Appellant as a party to kidnapping:

[69] ...[The Appellant] was convicted of the offence of unlawful confinement with knowledge that McMynn had been kidnapped and thus aided in the continuing kidnapping of McMynn. [The trial judge] also concluded that the accused was involved in the wrongdoing with “full knowledge” or had knowledge of the movement of McMynn. [A.R., pp. 173-174].

ii) Minority reasons, concurring in the result

36. Prowse JA did not find it necessary to decide whether kidnapping is by its nature

a continuing offence; rather, she was satisfied that the kidnapping in this case was charged in one count as a continuing transaction between April 3 and 12, 2006, which

encompassed the initial taking of the victim and subsequent movements of him from

house to house. While the Appellant was not a party to the initial taking on April 4,

2006, his actions in confining the victim aided and abetted those who subsequently 14

moved him. The only reasonable inference was that the Appellant knew and intended

his actions would assist the principals in that regard. While the transaction could have

been broken down and charged as separate offences, a single transaction can

encompass a number of occurrences [A.R., p. 177, para. 85].

37. Prowse J.A. observed it did not appear that the trial judge turned his mind to the

Appellant’s culpability as a party to kidnapping by virtue of unlawfully confining the victim after his initial seizure but before the subsequent movements of the victim from house to house. The Appellant could be convicted if he knew the victim had been kidnapped and did something which aided and abetted those who moved the victim from house to house with the intent to assist them:

[88] ...As earlier stated, the only reasonable inference that can be drawn from the evidence is that, at the time Mr. Vu was confining Mr. McMynn, he knew of the plans to move Mr. McMynn from house to house and his actions were intended to further those plans. In my view, this is implicit in the finding by the trial judge (at para. 369) that Mr. Vu “was involved, with full knowledge, in the wrongdoing against McMynn. I am satisfied of that beyond a reasonable doubt.” [A.R., p. 178].

PART II

RESPONDENT’S POSITION ON ISSUES ON APPEAL

38. The majority of the Court of Appeal for British Columbia correctly concluded that kidnapping is a continuing offence.

39. The majority of the Court of Appeal for British Columbia correctly concluded that an accused may be a party to a kidnapping where s/he is a principal offender in the confinement but not involved in the abduction, as long as the requisite knowledge is proven.

40. In the alternative, Prowse JA correctly concluded the Appellant guilty of kidnapping as a party to a continuing transaction which encompassed the initial taking of Mr. McMynn and the subsequent moving of him from house to house.

PART III

ARGUMENT

A. Overview

41. When was Mr. McMynn kidnapped? The reasonable person, properly informed, would say “When he was abducted from his car at gunpoint.” The same person, asked when Mr. McMynn’s kidnapping ended, would say “When he was rescued by the police eight days after he was taken.” Thus, kidnapping is complete with the movement or taking of the victim, but it is not necessarily completed. The Respondent submits the offence continues from the initial movement or taking of the victim until there is ultimate finality in the movement of the victim, marked either by release or rescue from captivity.

42. The authorities are clear that movement of the victim differentiates the offence of kidnapping from unlawful confinement. Movement, or taking, commences the kidnapping, but when does the kidnapping end in law? The relevant Code provision does not assist as it does not provide a definition of kidnapping:

279 (1) Kidnapping

Every person commits an offence who kidnaps a person with intent

(a) to cause the person to be confined or imprisoned against the person's will; (b) to cause the person to be unlawfully sent or transported out of Canada against the person's will; or (c) to hold the person for ransom or to service against the person's will.

43. Unlawful confinement, or forcible confinement is set out in s. 279(2):

279 (2) Forcible confinement

Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

44. Kidnapping is a strictly indictable offence with a maximum punishment of life imprisonment and mandatory minimum jail sentences in certain specified circumstances involving firearms or criminal organizations. Unlawful confinement is a hybrid offence.

When the Crown proceeds by indictment, the maximum period of imprisonment is ten years.

B. The authorities

45. In R. v. Metcalfe, Nemetz C.J.B.C. adopted a statement from an American case that “Kidnapping is a false imprisonment aggravated by conveying the imprisoned person to some other place.” This recognizes the significance both of the movement and the ensuing confinement. The Respondent’s position is that movement is an aggravating factor, but it does not terminate the kidnapping, nor does it exclude the ensuing confinement (and movements during confinement) from being part of kidnapping as a continuing offence.

R. v. Metcalfe (1983), 10 C.C.C. (3d) 114 (B.C.C.A.) at pp. 118-119 [Appellant’s Authorities, Tab 10] R. v. Oakley (1977), 36 C.C.C. (2d) 436 (Alta.App.Div.) at pp. 439-443 [A.A., Tab 11]

46. In R. v. Tremblay LeBel J.A. (as he then was) observed that the fundamental difference between kidnapping and confinement is in the area of movement.

Kidnapping involves the taking control and conveying of a person without consent:

Forcible confinement deprives the individual of his liberty to move from point A to point B. As for kidnapping, it consists of the taking of control over a person and carrying him away from point A to point B. The distinction between the two offences sometimes becomes rather subtle because to carry away a person from one point A to one point B prevents, at the same time, the person from moving from another point A to another point B. This is the reason why kidnapping necessarily entails forcible confinement. However, there can be forcible confinement without there being a kidnapping at the outset.

R. v. Tremblay (1997), 117 C.C.C. (3d) 86 (Que.C.A.) at pp. 93-95 [A.A., Tab 15]

47. The Respondent does not dispute the authorities which hold that kidnapping can

be complete with the initial movement of the victim, but there appears to be no case

which has had to resolve, on its facts, whether or not kidnapping is a continuing offence

beyond the initial movement or taking.

48. In R. v. Oakley, supra, the Alberta Court of Appeal reviewed several English authorities, including R. v. Reid, in which the court found no reason why kidnapping should be regarded as a continuing offence involving the concealment of the person seized. But kidnapping as a continuing offence was not the issue in Oakley, nor did

Reid hold that kidnapping was terminated with the initial movement or taking of the victim. In Davis v. R, an Australian case involving kidnapping, the court considered

Reid and said:

Neither Reid nor Campbell supports the proposition that a taking ceases to be a taking at the moment that the kidnapper becomes criminally liable for the offence. The offence might at that moment be complete in law, because the taking has been completed for the purposes of proving the offence, but it is not necessarily 19

complete in fact. Once it has been established that a person has been “taken”, in the sense that he or she has been compelled to go where he or she did not want to go, the “taking” continues until the compulsion ceases. It does not cease merely because the person has been taken for a certain distance or for a certain time or even because the kidnapper has ceased to physically move the victim and has commenced detaining that person in the one place. In a real sense, the kidnapper is taking the victim, that is causing the victim to accompany him or her, for the entire duration of the time, however long it is, that the victim is, as a result of the kidnapper’s conduct, involuntarily detained in a place that is not the place where the victim was first detained. The taking begins with the detention and asportation of the victim, and only ends when the victim is released or ceases to withhold consent to the detention.

Davis v. R., [2006] NSWCA 392 at paras. 56-64 [A.A., Tab 5] R. v. Reid, [1972] 2 All E.R. 1350 (C.A., Crim. Div.) at pp. 1351-1352 [A.A., Tab 14] R. v. Oakley, supra at p. 442 [A.A., Tab 11]

49. R. v. Reid did not hold that kidnapping could not include confinement, but merely that it was not necessary for kidnapping at common law to continue with “secreting” or concealing the victim. Reid was considered in R. v. Meehan, and although the issue was not resolved, Lord Lowry LCJ expressed the view that a person joining in the confinement of a kidnapped person would at least have to know that the victim had been taken or carried away to the place of confinement in order to be liable for kidnapping.

R. v. Meehan [1981] NI 24 at p.4 [Respondent’s Authorities, Tab 7]

50. The Appellant relies on this Court’s decision in Bell v. The Queen as some authority for his contention that kidnapping is not a continuing offence. In Bell, McIntyre

J. wrote:

A continuing offence is not simply an offence which takes or may take a long time to commit. It may be described as an offence where the conjunction of the actus reus and the mens rea, which makes the offence complete, does not, as well, terminate the offence. The conjunction of the two essential elements for the commission of the offence continues and the accused remains in what might be described as a state of criminality while the offence continues. 20

Bell v. The Queen, [1983] 2 S.C.R. 471 at 488 [A.A., Tab 2]

51. With kidnapping, there is a conjunction of the actus reus and the mens rea when the victim is moved with the necessary intent, even if there is no confinement at all during the movement of the victim. For example in R. v. Metcalfe, supra, there was no confinement of the victim until some significant time after his arrival at the place where he was eventually detained. With kidnapping, the kidnapper continues to remain in a state of criminality by continuing to hold the victim, often in circumstances worse than the abduction itself. If kidnapping does not continue by including the ensuing confinement, the sentence of life imprisonment in Metcalfe would seem artificial and contrived, as the initial movement of the victim involved a short, consensual and uneventful drive, with talk about old times. It was the seriousness of the ensuing confinement which justified the sentence. This fits with the recognition in Metcalfe that

“Kidnapping is a false imprisonment aggravated by conveying the imprisoned person to some other place.” Confinement is the true focus of the offence, plus the additional element of asportation.

R. v. Metcalfe, supra, at pp. 118-119 [A.A., Tab 10]

52. In R. v. Bell, the importation of the narcotics was found not to be a continuing offence. Murder and theft were given as other examples of offences which were not continuing. McIntyre J. also observed that kidnapping would not be a continuing offence, though the wrongful detention of the victim following the kidnapping would be.

This observation was obiter dicta, as kidnapping was not before the Court. There was neither a supporting analysis of kidnapping nor reference to authorities. R. v. Reid, supra, was the leading case in England at the time and may well have been the source 21

of the observation, but as outlined supra, at para. 48, it may be misleading on its face.

In any event, the examples given in Bell, while intended to be helpful, were not binding.

Kidnapping is different from the other examples given in Bell. Theft has a specific provision, section 322(2), outlining when it is committed, which in turn implies termination of the offence. Manifestly, the ongoing ordeal of a kidnap victim, for whom the abduction is only the beginning, cannot be equated to theft of objects or the importation of drugs. And while the example of murder involves a human being, the ordeal clearly ends with the killing.

Bell, supra, at p. 488 [A.A, Tab 2] R. v. Henry, [2005] 3 S.C.R. 609, 202 C.C.C. (3d) 449 at para. 57 [R.A., Tab 6]

53. A more recent observation about the nature of kidnapping appears in LeBel J.’s minority judgment, concurring in the result, in R. v. Pickton. In the context of examining co-principal liability for murder, LeBel J. said:

[65] Co-principal liability can also arise for offences other than murder, as s. 21 applies to all offences set out in the Criminal Code. Indeed, many other offences without causal requirements would lend themselves more clearly to a “co- principal” type situation, as they are offences which are often committed by more than one person, such as robbery, kidnapping, or breaking and entering. In those cases, the actus reus or acts that make up the offence can extend over minutes or hours or days, and different elements or portions of the offence can be completed by different persons (if one breaks the window of a premises, and both persons enter it, they are both still actually committing the same break and enter). In this way, co-principal liability can arise whether the acts of each accused are committed sequentially (one acts first, the other acts second, and the actus reus of the offence is only complete after the second act), or whether the acts are concurrent (both accused persons act at the same time, each committing the entire actus reus). [Respondent’s emphasis]

R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198 [R.A., Tab 9]

54. It is a matter of legal indifference whether the Crown proves an accused to be a

principal or a party.

R. v. Thatcher, [1987] 1 S.C.R. 652 at 694 and 697 [R.A., Tab 12]

55. The Respondent submits the preferable approach is to recognize kidnapping as a continuing offence and to apply the principle in R. v. Kienapple to the unlawful confinement which overlaps the ongoing kidnapping. This was the outcome in R. v.

Sharif, where the Court of Appeal for British Columbia upheld the conviction for kidnapping but entered a stay of proceedings on the charge of unlawful confinement, even though the confinement continued after the movement of the victim had ended. A similar result prevailed in R. v. Meigs.

R. v. Kienapple, [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524 [A.A., Tab 8] R. v. Sharif (2002), 4 C.R. (6th) 163 (B.C.C.A.) at pp. 166-168 [R.A., Tab 11] R. v. Meigs, 2007 BCCA 394, [2007] B.C.J. No. 1659 at paras. 5-6 [R.A., Tab 8]

C. A brief history of kidnapping

56. The Respondent submits the historical development of the offence of kidnapping

supports its interpretation as a continuing offence.

57. In England, kidnapping appears to have evolved as a common law offence from

false imprisonment, which has been traced back to the thirteenth century. In terms of

statute, there was little of general application to address what is now thought of as

kidnapping. Section 11 of the Habeas Corpus Act 1679 provided for an action of false

imprisonment if a person was, “... committed detained imprisoned sent Prisoner or

transported...” outside England and Wales. Hawkins’ Pleas of the Crown notes that 23

“moss-trooping” in the north of England, was made punishable by death without benefit of clergy, namely to:

...take any of her majesty’s subjects against his or their will or wills, and carry them out of the same counties, or detain, force or imprison him or them as prisoners, or against his or their wills, to ransom them, or to make a prey or spoil of his or their person, or goods...

Habeas Corpus Act 1679, 1679 c. 2, 31 Cha. 2 [R.A., Tab 18] Hawkins, William Pleas of the Crown 8th ed., (1824), vol. 1, at pp. 119-120, 534- 535 [R.A., Tab 19]

58. Although more distantly related to kidnapping, statutes were passed, beginning in

1806, to abolish the slave trade. “Child-stealing”, was addressed by statute, but even

by 1861, section 56 of The Offences against the Person Act covered only taking

children under fourteen out of the possession of their parent or guardian. (R. v. Oakley

notes in reference to Canadian legislation, that the law on child abduction developed

along “separate although perhaps somewhat parallel lines to kidnapping and forcible

confinement”.) In 1883, Sir James Stephen observed that it was “remarkable” that the

offence of kidnapping was not punishable in England otherwise than under the slavery

provisions, “... or as a common law misdemeanour, except in the case of children under

fourteen.” (By then, kidnapping was punishable by statute in Canada, and had been

since before Confederation.) Indeed, the first use of the word “kidnapping” in English

legislation appears to be in schedule (A) of the Pacific Islanders Protection Act, 1872,

referred to there as the “Kidnapping Act, 1872”. This legislation made it unlawful to

decoy, carry away, confine or detain natives of the Pacific Islands for labour in the

colonies of Australia and New Zealand.

Davis v. R., supra at paras. 23-24 [A.A., Tab x] East, E.H., Pleas of the Crown (1803), vol. 1, at pp. 428-432 [R.A., Tab 5] 24

Stephen, Sir James Fitzjames, A History of the Criminal Law of England, originally published London, 1883, vol. 2, pp. 58-59; vol. 3, pp. 255-257 [R.A., Tab 26] R. v. Oakley, supra at p. 442 [A.A., Tab 11] The Pacific Islanders Protection Act, 1872, 35 & 86 Vict., c. 19 [R.A., Tab 28] Aickin, K.A., Kidnapping at Common Law, 1 Res Judicatae 130 (1935-1938) [R.A., Tab 13] Lambert, John, Kidnapping and False Imprisonment at Common Law, 10 Cambria L. Rev. 20 (1978-1979) [R.A., Tab 23] The Offences against the Person Act 1861, 24 &25 Vict., c. 100, s. 56 [R.A., Tab 29

59. In Canada, the statutory offence of kidnapping first appeared in an 1865 statute of the Province of Canada, which recited that it was, “expedient and necessary to provide more fully for the punishment of the crime kidnapping”:

I. Any person who, without lawful authority, shall forcibly seize and confine, or imprison any other person within this Province, or shall kidnap any other person with intent ―

1. To cause such other person to be secretly confined or imprisoned in this Province against his will; or, 2. To cause such other person to be sent or transported out of this Province against his will; or, 3. To cause such other person to be sold or captured as a slave, or in any way held to service against his will;

Shall be guilty of felony...

An Act to provide more fully for the punishment of the Crime of Kidnapping 1865, 29 Vict., c. 14 [R.A., Tab 14]

60. Taschereau cites the foregoing as the source of the subsequent Dominion

legislation, which is virtually identical. R. v. Oakley traces the language in the Criminal

Code, where it remained essentially unchanged until 1900. Although the origin of this

language is not clear, its most plausible source is not the common law offence of

kidnapping (at least not directly), but rather the contemporaneous report of law

commissioners in the neighbouring state of New York, the proposed Penal Code of the 25

State of New York. That report, a draft of which had been distributed, contained remarkably similar structure and language. Prior to the 1865 legislation, there was only the common law offence of kidnapping, the scope of which in Canada is not entirely clear. It was quite narrowly described in Keele’s Magistrate’s Manual of the Criminal

Law of Canada, published the year before:

KIDNAPPING. Is the forcible abduction or stealing away of a man, woman, or child, from their own country, and sending them into another – 4 Bl. Com., p. 219; and is punishable at common law with fine, imprisonment, and pillory.

Taschereau, Henri Elzéar, The Criminal Statute Law of the Dominion of Canada 1888, Carswell & Co., Toronto, at pp. 215-218 [R.A., Tab 27]. R. v. Oakley, supra at p. 440 [A.A., Tab 11]. Penal Code of the State of New York, Reported Complete by the Commissioner of the Code, 1865, Weed, Parsons & Co., Albany at pp. 93-94 [R.A., Tab 25]. Keele, W.C. Magistrate’s Manual of the Criminal Law of Canada, 1864, Henry Rowsell, Toronto, at pp. 138, 494-495 [R.A., Tab 22]

61. The statutory offence of “kidnapping” was clearly intended to be broader than the

common law of offence. Included were not only “kidnaps”, but also “forcibly seizes and

confines” and “imprisons”. The intent element was also diverse, incorporating even the

intent to cause a person to be sold or captured as a slave. In Cornwall v. Q., the

majority held that the intent element applied to “confine” as well as to “kidnap”.

Cornwall v. Q. (1872), 33 U.C.Q.B. 106 at pp. 117, 125, 127-128 [R.A., Tab 2]

62. By the time legislation was enacted in Canada, the use and meaning of “kidnap” in the common law extended beyond its original, narrow definition. The word itself appears to come from a slang term for white, indentured servants brought to the

American colonies. It meant, “to steal or carry off (children or others) in order to provide 26

servants or labourers for the American plantations.” “Kidnap”, as a common law

offence, however, was broader, and not at all limited to movement. As described in

East’s Pleas of the Crown:

The most aggravated species of false imprisonment is the stealing and carrying away, or secreting of any person, sometimes called kidnapping, which is an offence at common law, punishable by fine, imprisonment, and pillory. (Emphasis added)

East, E.H., Pleas of the Crown, supra at pp. 429-430 [R.A., Tab 17]

63. Aickin notes that Hawkins in his Pleas of the Crown, first published in 1716,

wrote, “... an aggravated species of false imprisonment is the privately carrying off any

person and keeping them secretly confined, which is generally understood by the term

“kidnapping”. (Emphasis added). Although the element of secreting was recognized as obsolete in England by 1984, the House of Lords observed in R. v. D. that, “... the

offence was in former days described not merely as taking or carrying away a person,

but further or alternately as secreting him”. Recognition in the early Canadian

legislation that kidnapping included “secreting” is evident from one of the intents

provided, “... to cause such other person to be secretly confined or imprisoned.”

(Emphasis added.) “Secreting” entailed confinement. So did “seize and confines” and

“imprisons”. The offence as a whole, and all of its aspects, appeared designed and

intended to provide protection not only from initial capture, but also from the underlying

deprivation of liberty caused by confinement resulting from capture, seizure or

imprisonment.

Oxford English Dictionary Online at pp. 3-4 [R.A., Tab 24] R. v. Oakley, supra at p. 439 [A.A., Tab 11] Aickin, K.A., Kidnapping at Common Law, supra, at pp. 136-137 [R.A., Tab 13] Hawkins, William Pleas of the Crown, supra at p. 119 [R.A., Tab 19] 27

R. v. D., [1984] 3 W.L.R. 186 (H.L.(E.)) at p. 192 [R.A., Tab 5]

64. There have been subsequent changes to the kidnapping section, in particular (as

noted in R. v. Oakley), in 1900 when the section was restructured, and in 1954 when

“secretly” was dropped and the reference to slavery was replaced by holding for

ransom. As observed in Oakley, there does not appear to be any judicial authority

shedding light on these changes. As for the Parliamentary record, the Respondent has

found no specific reference to the kidnapping section in proceedings on the 1900

Criminal Code amendments. During the 1953-54 session, when it was pointed out that there was no definition of “kidnap” in the section, the then Minister of Justice replied that the term had a “reasonably precise meaning as taken from the dictionary”, and that nobody would take it to mean “other than that which we all take it to mean”. There is no evidence in the Parliamentary proceedings that these amendments were prompted by any particular legislative context or concern which required either changing the substantive offence of kidnapping or restricting it to movement of the victim only. By section 45(2) of the Interpretation Act, an amendment shall not be presumed to have changed the meaning of an enactment. In the Respondent’s submission, kidnapping remained a continuing offence as was always intended.

R. v. Oakley, supra at pp. 440-441 [A.A., Tab 11] Crankshaw’s Criminal Code of Canada, looseleaf, Carswell, Toronto, vol. 2 at 8-898.14 to 8-898.17 [R.A., Tab 15] House of Commons Debates, 1953-54, vol. 3, at p. 2480 [R.A., Tab 20] Interpretation Act, R.S.C. 1985, c.I-21, s.45(2) [R.A., Tab 21]

65. As the Appellant notes at para. 53 of his factum, when the statute was

restructured in 1900 kidnapping and confinement were made two distinct offences.

Kidnapping has since retained a greater punishment than the offence of confinement. 28

The Respondent submits the principles of statutory interpretation lend support to the contention that Parliament’s intent was to preserve confinement pursuant to a kidnapping as an element of the offence by attaching a greater penalty to the offence of kidnapping. As Iacobucci J. said in Bell Express Vu v. Rex:

[26] In Elmer Driedger’s definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983): Today there is only one principle or approach, namely the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

Driedger’s modern approach has been repeatedly cited by this Court as the preferred approach to statutory interpretation across a wide range of interpretive settings [citations omitted]. I note as well that, in the federal legislative context, this Court’s preferred approach is buttressed by s. 12 of the Interpretation Act, R.S.C. 1985, c-I21, which provides that every enactment “is deemed remedial and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.”

Bell Express Vu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 [R.A., Tab 1]

66. There is also sound basis, both in practicality and in principle, for interpreting kidnapping as a continuing offence which includes the ensuing confinement, rather than cutting it off at some arbitrary point of initial movement. The harm to the victim has no such cut off. In reference to the Australian kidnapping statute, Davis v. R. rejected the argument that “taking” a person was a finite and separate offence from “detaining” a person. What is basic:

...is the interference with the liberty of the person that is the conduct at the heart of the modern day concept of kidnapping. I can see no policy consideration that would warrant an interpretation of the section as giving rise to two distinct offences as the appellant asserts.

Davis went on to point out the difficulty and artificiality of determining when taking ends

and detention begins, “... particularly in cases where the victim is transported repeatedly

from one place to another rather than simply held in one place.” That concern clearly

arises in the case at bar - it is artificial to limit kidnapping to the physical transport,

alone, of McMynn, and divorce it from his eight days of confinement, much of the time

spent blindfolded and bound.

Davis v. R., supra at paras. 56-58 [A.A., Tab 5]

67. In a study of kidnapping statutes in the United States, Professor Diamond urged that “kidnapping ought to be viewed as a distinct social harm most appropriately measured primarily by the duration and condition of the victim’s confinement.” He concluded that the concept of “asportation” (taking or movement) has not succeeded in determining when confinement should constitute the serious offence of kidnapping, and that isolation is the evil against which the crime of kidnapping is aimed:

A modern legal definition, focusing on the harm kidnapping generates by the time and quality of isolation and de-emphasizing the metaphysics of asportation, can properly be the basis for a crime that punishes a specific harm that still flourishes in a world very different from the one in which it was conceived.

Diamond, John L., Kidnapping: A Modern Definition, 13 Amer.J. of Crim. L. 1 (1985-86) at pp. 1-5, 30-36 [R.A., Tab 16]

68. Likewise in Canada, the Respondent submits that kidnapping should be

interpreted to include the isolation and confinement imposed on the victim.

D. Application to this case

i) Kidnapping as a continuing offence

69. The Respondent submits the majority of the Court of Appeal correctly concluded

that kidnapping is a continuing offence which encompasses both the initial taking and

the subsequent keeping and any successive moves of the victim. The Crown must

prove those involved were parties who committed acts which aided or abetted the offence of kidnapping - both the actus reus and the mens rea - or were co-principals.

An aider or abettor need not share the intent to commit the offence:

It is sufficient that he or she, armed with knowledge of the perpetrator’s intention to commit the crime, acts with the intention of assisting the perpetrator in its commission. It is only in this sense that it can be said that the aider and abettor must intend that the principal offence be committed.

The requisite knowledge can be actual knowledge or knowledge imputed through wilful blindness. It is not necessary that the aider know all the details of the crime committed.

R. v. Briscoe, 2010 SCC 13, paras, 14-18, 20-24 [A.A. Tab 3] R. v. Roach (2003), 192 C.C.C. (3d) 557 (Ont.C.A.) at paras. 29, 44 [R.A., Tab 10].

70. There will be cases where a party is charged with kidnapping and confinement but is only guilty of confinement. This may happen because the Crown is unable to prove knowledge that the victim has been kidnapped, or where the evidence of kidnapping is lacking (see for example R. v. Berar, 2010 BCCA 190 at para. 16 [R.A.,

Tab 3]). There may also be cases of kidnapping without confinement, where for example the victim is lured into the accused’s company by a ruse but never actually confined. But the facts of the Appellant’s case demonstrate that he participated in the confinement of Mr. McMynn in circumstances where it was manifest (he was blindfolded and bound, after all) that the latter had been taken against his will. It was, for all intents and purposes, a “classic” kidnapping, lacking only a ransom demand. 31

71. To put it another way, this kidnapping “employed” a range of individuals: the

takers, the keepers, the movers and the group which was to make the ransom demand

(which group was never apprehended). Some of the individuals, such as Nguyen and

Hernandez, played more than one role, but each role was an integral part of the whole

kidnapping enterprise. It does not offend established jurisprudence to hold each

member of the group responsible for the kidnapping by virtue of a role played, however

minor, if each assisted the commission of the offence with the requisite degree of

knowledge.

72. The Appellant’s position on the matter, expressed at para. 61 of his factum, unnecessarily parses out each role and disregards the fundamentals of party liability.

Isolating the Appellant’s involvement from the greater criminal enterprise on the trial judge’s findings in this case is an artificial exercise. Neither parties nor co-principals are

“joined at the hip” through every step of a criminal transaction: R. v. Pickton, supra, at

para. 53. Lesser players can be dealt with appropriately at the penalty phase. That is

precisely what occurred in this case. Nguyen received 13 years for kidnapping;

Hernandez received 12 years [A.R., p. 148]. The trial judge explicitly recognized the

Appellant’s role in the kidnapping merited a lower sentence than Hernandez received,

since the latter threatened the victim with a firearm or imitation during his confinement,

and imposed a sentence of ten and one half years [A.R., p. 192, paras. 12-13].

73. On the Appellant’s analysis there is no clarity to when the kidnapping ended and

the confinement began. Was the kidnapping complete when Mr. McMynn was directed

towards the silver Honda at gunpoint? Was it complete when he was put in the silver

Honda? Was the person who directed the victim’s movements at gunpoint (the first to 32

move him against his will) guilty of kidnapping but the getaway driver only guilty of

confinement because the initial movement had been completed?

74. Finally, the punishment scheme for the two offences is in harmony with the proposition that kidnapping is the more serious of the two offences and must by necessary implication include more than “just” the taking. The taker is exposed to a maximum of life imprisonment, yet on the Appellant’s analysis, the one who keeps the victim in grave or degrading circumstances of privation, knowing full well the victim has been kidnapped, is only exposed to a maximum period of imprisonment of ten years if

confinement is not treated as part of the continuing offence.

ii) Kidnapping as a continuing transaction

75. In the alternative, the Respondent submits Prowse JA was correct in grounding

the Appellant’s liability for kidnapping in his involvement in a continuing transaction which encompassed the initial taking and the subsequent movement from house to

house. This finding turned on how the count was drafted as opposed to a finding that

kidnapping is inherently a continuing offence.

76. Prowse JA said:

[85] ... In my view, while Mr. Vu could not be viewed as a party to the initial taking on April 4, 2006, his actions in confining Mr. McMynn prior to the movements of Mr. McMynn from House #1 to House #2, and/or from House #2 to House #3, aided and abetted those who moved Mr. McMynn, in circumstances where the only reasonable inference is that Mr. Vu knew and intended that his actions would assist the principals in that regard. While this continuing transaction could have been broken down and charged as separate offences, it made sense in these circumstances to charge it as one transaction which spanned the period charged. As stated by Madam Justice Ryan, speaking for the majority in R. v. M. (G.L.), 1999 BCCA 467, 138 C.C.C. (3d) 383, at para. 11: 33

A “single transaction” may validly encompass a number of occurrences, each in themselves capable of constituting an offence, where the acts relate to a similar activity or involve a similar course of conduct. Thus, an indictment will not necessarily offend the single transaction rule even where it spans a lengthy period of time and involves a number of separate incidents in a variety of locations. ...

R. v. Colgan (1986), 30 C.C.C. (3d) 183 (Man.C.A.) at pp. 184-188, aff’d [1987] 2 S.C.R. 686, 38 C.C.C. (3d) 576 [R.A., Tab 4]

77. The entire transaction involved three incidents which were closely connected, successive movements of the same person. No objection was raised at trial to the way the charge was framed in the indictment. The Appellant cannot claim to be taken by surprise that his liability potentially extended beyond the confinement allegation in

Count 2.

78. The trial judge noted in the opening paragraphs of his Reasons that movement distinguishes kidnapping from confinement. Indeed, Hernandez’s conviction for kidnapping turns on that point, as the trial judge found he was not an active participant in the original kidnapping but, like the Appellant, was present at the houses of

confinement with full knowledge Mr. McMynn was being confined against his will;

discussed the move between House #2 and House #3 with Nguyen and the Appellant

[A.R., p. 65, para. 196(4)]; and rode in the vehicle that transported the victim between

the two houses.

79. Prowse JA correctly observed, at para. 87 of her Reasons, that the trial judge did

not appear to turn his mind to whether the Appellant could be a party to kidnapping by

his actions in confining Mr. McMynn after he was first taken but before the subsequent movements from house to house. This, she concluded, was an error: 34

[88] It was not necessary for [the Appellant], himself, to actually seize Mr. McMynn, or to move him from house to house, to be found guilty as a party to kidnapping. All that was required was that, with full knowledge that Mr. McMynn had been kidnapped, [the Appellant] did something which aided or abetted those who moved Mr. McMynn from house to house with the intent of assisting them in those efforts. As earlier stated, the only reasonable inference that can be drawn from the evidence is that, at the time [the Appellant] was confining Mr. McMynn, he knew of the plans to move Mr. McMynn from house to house and his actions were intended to further those plans. In my view, this is implicit in the finding of the trial judge (at para. 369) that [the Appellant] “was involved, with full knowledge, in the wrongdoing against McMynn. I am satisfied of that beyond a reasonable doubt.”

E. Conclusion

80. The Respondent submits that drawing the line of culpability for kidnapping once the victim is taken, without regard to the ensuing confinement, makes no sense in law or policy and could lead to factual anomalies and uncertainty. Holding kidnapping to be a continuing offence recognizes the collective harm the offence is aimed at: the isolation and confinement of an individual who has been taken without consent. 35

PART IV

COSTS

81. The Respondent makes no submission on costs.

PART V

ORDER SOUGHT

82. That the Appellant’s appeal from conviction for kidnapping imposed by the Court of Appeal for British Columbia be dismissed.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

______Jennifer Duncan Counsel for the Respondent

November 30, 2011 Vancouver, BC

PART VI

TABLE OF AUTHORITIES

Authorities: Paragraph

Bell Express Vu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 ...... 65

Bell v. The Queen, [1983] 2 S.C.R. 471, 8 C.C.C. (3d) 97 ...... 50, 51

Cornwall v. Q. (1872), 33 U.C.Q.B. 106 ...... 61

Davis v. R., [2006] NSWCA 392 ...... 48, 58, 66

R. v. Berar, 2010 BCCA 190 ...... 70

R. v. Briscoe, 2010 SCC 13 ...... 63

R. v. Colgan (1986), 30 C.C.C. (3d) 183 (Man.C.A.), aff’d [1987] 2 S.C.R. 686, 38 C.C.C. (3d) 576 ...... 76

R. v. D., [1984] 3 W.L.R. 186 (H.L.(E.)) ...... 63

R. v. Henry, [2005] 3 S.C.R. 609, 202 C.C.C. (3d) 449 ...... 51

R. v. Kienapple, [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524 ...... 55

R. v. Meehan [1981] NI 24 ...... 49, 51

R. v. Meigs, 2007 BCCA 394, [2007] B.C.J. No. 1659...... 55

R. v. Metcalfe (1983), 10 C.C.C. (3d) 114 (B.C.C.A.) ...... 45

R. v. Oakley (1977), 36 C.C.C. (2d) 436 (Alta. App. Div.) ...... 45, 48, 58, 60, 63, 64

R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198 ...... 53, 72

R. v. Reid, [1972] 2 All E.R. 1350 (C.A., Crim. Div.) ...... 48

R. v. Roach (2003), 192 C.C.C. (3d) 557 (Ont.C.A.) ...... 69

R. v. Sharif (2002), 4 C.R. (6th) 163 (B.C.C.A.) ...... 55

R. v. Thatcher, [1987] 1 S.C.R. 652 ...... 54

R. v. Tremblay (1997), 117 C.C.C. (3d) 86 (Que. C.A.) ...... 46 38

Statutes and texts Paragraph

Aickin, K.A., Kidnapping at Common Law, 1 Res Judicatae 130 (1935-1938) ...... 58, 63

An Act to provide more fully for the punishment of the Crime of Kidnapping 1865, 29 Vict., c. 14 ...... 59 Crankshaw’s Criminal Code of Canada, looseleaf, Carswell, Toronto, vol. 2 ...... 64

Diamond, John L., Kidnapping: A Modern Definition, 13 Amer.J. of Crim. L. 1(1985-86) ...... 67 East, E.H., Pleas of the Crown (1803), vol. 1 ...... 54, 62

Habeas Corpus Act 1679, 1679 c. 2, 31 Cha. 2 ...... 57

Hawkins, William Pleas of the Crown 8th ed., (1824), vol. 1 ...... 57, 63

House of Commons Debates, 1953-54, vol. 3 ...... 64

Interpretation Act, R.S.C. 1985, c.I-21, s.45(2) ...... 64

Keele, W.C. Magistrate’s Manual of the Criminal Law of Canada, 1864, Henry Rowsell, Toronto ...... 60

Lambert, John, Kidnapping and False Imprisonment at Common Law, 10 Cambria L. Rev. 20 (1978-1979) ...... 58

Oxford English Dictionary Online ...... 63

Penal Code of the State of New York, Reported Complete by the Commissioner of the Code, 1865, Weed, Parsons & Co., Albany ...... 60

Stephen, Sir James Fitzjames, A History of the Criminal Law of England, originally published London, 1883, vol. 2 ...... 58

Taschereau, Henri Elzéar, The Criminal Statute Law of the Dominion of Canada 1888, Carswell & Co., Toronto ...... 60

The Pacific Islanders Protection Act, 1872, 35 & 86 Vict., c. 19 ...... 58

The Offences against the Person Act 1861, 24 &25 Vict., c. 100, s. 56 ...... 58

PART VII

STATUTORY PROVISIONS

Criminal Code

279(1) Kidnapping

Every person commits an offence who kidnaps a person with intent

279 (1.1) Punishment

Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of (i) in the case of a first offence, five years, and (ii) in the case of a second or subsequent offence, seven years; (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (b) in any other case, to imprisonment for life.

279 (2) Forcible confinement

Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of

Code Criminel

279.

279(1) Enlèvement

Commet une infraction quiconque enlève une personne dans l'intention :

a) soit de la faire séquestrer ou emprisonner contre son gré; b) soit de la faire illégalement envoyer ou transporter à l'étranger, contre son gré; c) soit de la détenir en vue de rançon ou de service, contre son gré.

279(1.1) Peine

Quiconque commet l'infraction prévue au paragraphe (1) est coupable d'un acte criminel passible :

a) s'il y a usage d'une arme à feu à autorisation restreinte ou d'une arme à feu prohibée lors de la perpétration de l'infraction, ou s'il y a usage d'une arme à feu lors de la perpétration de l'infraction et que celle-ci est perpétrée au profit ou sous la direction d'une organisation criminelle ou en association avec elle, de l'emprisonnement à perpétuité, la peine minimale étant : (i) de cinq ans, dans le cas d'une première infraction, (ii) de sept ans, en cas de récidive; a.1) dans les autres cas où il y a usage d'une arme à feu lors de la perpétration de l'infraction, de l'emprisonnement à perpétuité, la peine minimale étant de quatre ans; b) dans les autres cas, de l'emprisonnement à perpétuité.

279(2) Séquestration

Quiconque, sans autorisation légitime, séquestre, emprisonne ou saisit de force une autre personne est coupable :

a) soit d'un acte criminel et passible d'un emprisonnement maximal de dix ans; b) soit d'une infraction punissable sur déclaration de culpabilité par procédure sommaire et passible d'un emprisonnement maximal de dix-huit mois.

21(1) Parties to offence

Every one is a party to an offence who (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it.

21(2) Common intention

Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

21(1) Participants à une infraction

Participent à une infraction :

a) quiconque la commet réellement; b) quiconque accomplit ou omet d'accomplir quelque chose en vue d'aider quelqu'un à la commettre; c) quiconque encourage quelqu'un à la commettre.

21(2) Intention commune

Quand deux ou plusieurs personnes forment ensemble le projet de poursuivre une fin illégale et de s'y entraider et que l'une d'entre elles commet une infraction en réalisant cette fin commune, chacune d'elles qui savait ou devait savoir que la réalisation de l'intention commune aurait pour conséquence probable la perpétration de l'infraction, participe à cette infraction.